Appeal D Edlin v NZGRA 3 March 2010 – Decision on Application by NZGRA for recall of decision 10 May 2010

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hearing_title: Appeal D Edlin v NZGRA 3 March 2010 - Decision on Application by NZGRA for recall of decision 10 May 2010

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BEFORE AN APPEALS TRIBUNAL

HELD AT WELLINGTON

IN THE MATTER    of the Rules and Constitution                                                            of the New Zealand Greyhound

                        Racing Association (Incorporated)

BETWEEN     DEB EDLIN of Shannon, Licensed

                        Owner/Trainer

                        Appellant

AND               NEW ZEALAND GREYHOUND RACING ASSOCIATION INC

                        Respondent

Appeals Tribunal:

Mr Bruce Squire QC (Chairman)

Professor Geoffrey Hall

Present were:

Counsel:

Mr T R Carmichael – Counsel for the Respondent

Mr J A Tannahill – Counsel for Ms Edlin

Date of hearing: 3 March 2010

DECISION OF THE APPEALS TRIBUNAL ON APPLICATION BY THE NEW ZEALAND GREYHOUND RACING ASSOCIATION INC FOR RECALL OF DECISION

1.      Introduction

1.1        On 3 March 2010 we heard an appeal by Ms Edlin against a Decision of a Judicial Committee given following her appearance before the Committee on 19 October 2009 at which Ms Edlin was found to have acted in breach of R.88.1 (q) of the Rules and Constitution of the New Zealand Greyhound Racing Association (Incorporated) (hereafter "the Rules").  As a result of that finding Ms Edlin was fined the sum of $500. 00, disqualified for a period of 5 months commencing from 10 November 2009 and ending on 10 April 2010 and ordered to pay costs in the sum of $600.00.  The appeal we heard on 3 March 2010 was against both the finding of the Judicial Committee that Ms Edlin had acted in breach of R.88.1 (q) and the penalty it imposed.

1.2        For the reasons outlined in our Decision of 14 April 2010 we dismissed Ms Edlin's appeal against the finding she acted in breach of R.88.1 (q) but allowed her appeal against the penalty imposed by the Judicial Committee by quashing the Order to pay costs and reducing the period of disqualification to five weeks.  The fine imposed by the Judicial Committee remained undisturbed and because Ms Edlin's appeal was only partly successful we ordered her to pay costs to the NZGRA in the sum of $300. 00 and to the Judicial Control Authority in a similar amount.

1.3        As noted above the disqualification imposed by the Judicial Committee on Ms Edlin commenced on 10 November 2009.  Prior to the hearing of the appeal, on 16 December 2009, without opposition from the NZGRA Ms Edlin was granted a stay of penalty pending the determination of her appeal.  By that date the disqualification imposed by the Judicial Committee had been operative for approximately five weeks.  In our Decision of 14 April 2010 in which we reduced the period of disqualification to five weeks we observed that given Ms Edlin had already suffered disqualification for five weeks she would have no further period of disqualification to serve.

1.4        Following the release of our Decision of 14 April 2010 the NZGRA, on 20 April 2010, lodged an Application for Recall.  The Application is based on the claim that that part of our Decision in which we recorded the disqualification imposed on Ms Edlin had been operative for five weeks by the time it was stayed on 16 December 2009 pending the result of her appeal, was in error and not factually correct.  In its Application the NZGRA has claimed Ms Edlin did not effectively serve any period of disqualification and continued to conduct her business in the industry from the date she indicated her intention to appeal on 3 November 2009 throughout the period from that date up to the date the disqualification was stayed on 16 December 2009.  The NZGRA accordingly seeks a recall of our Decision to "correctly reflect the true position in relation to the period of disqualification imposed on the Appellant" as it is put in the Application.

1.5              On 7 May 2010 we received from the Executive Officer of the Judicial        Control Authority a copy of an email sent to her that day by Mr Carmichael   purporting to withdraw the application for recall of our Decision.  By that date      the Application had been under consideration by us for some time and in            terms of a timetable notified to the parties we had received some papers from           Mr Carmichael supporting the Application.  For that reason and because we            see some benefit to the NZGRA in understanding how the matters, the subject   of its Application should be dealt with should similar circumstances arise in     future cases, we have decided to issue a Decision on the Application rather         than permitting its withdrawal.

2.      Discussion

2.1        Except to the extent it may be implicit under R.98.11 or other Rules governing the Tribunal's jurisdiction, which, for present purposes, we will assume without formally deciding, the Rules do not appear to permit an Appeal Tribunal to recall its Decision.  Further, assuming such jurisdiction, the Rules provide no guidance as to how the jurisdiction should be exercised.  Resort to general principles suggests that where, as here, the Application for Recall is based on claimed factual error, the reason for recall must fall within the category of a "very special reason".  There are sound policy reasons for this arising from the requirements of finality of litigation which, in part, appear to have been given expression in the Rules, in the appellate context, in the opening words of R.98.21.

2.2        Approaching the Application for Recall made in this case on that basis the following observations need to be made:

(i)                  despite the claim made by the NZGRA, our decision of 14 April 2010 was not in error in recording in paragraph 6.1 that by the time the Tribunal, on 16 December 2009, stayed the disqualification imposed on Ms Edlin, the disqualification had been operative for approximately five weeks.

(ii)                if it is correct, as the NZGRA claims, that Ms Edlin effectively ignored the disqualification imposed by the Judicial Committee by continuing to "conduct her business in the industry" (as it is put) between 3 November 2009 and 16 December 2009 (and there appears to be a dispute between the parties about that) that does not affect the efficacy of the disqualification ordered by the Judicial Committee or the correctness of what we recorded in our Decision as detailed in (i) above.  All it means, if the NZGRA is correct, is that Ms Edlin did not comply with the Order of disqualification made by the Judicial Committee up to the time it was stayed on 16 December 2009.  Ms Edlin's non-compliance, if there be non- compliance, did not render the disqualification inoperative or ineffective.  Whether it exposes Ms Edlin to further liability under the Rules is a matter for the NZGRA to decide.

(iii)               in terms of the appeal lodged by Ms Edlin the issue for us as the Appeal Tribunal, in relation to the period of disqualification imposed by the Judicial Committee, was whether it was manifestly excessive in the circumstances.  For the reasons detailed in our Decision we concluded the period of disqualification imposed was excessive and reduced it to what we considered appropriate.  At no point either at the hearing of evidence or in the submissions subsequently filed by the NZGRA was any submission made to us that in considering that issue we should take account of the matters which the NZGRA now advance in support of its Application for Recall.  The NZGRA must have been aware of those matters at the time of the hearing before us and the subsequent filing of submissions, and if they were considered to be matters of material importance to the issues which we were required to address they ought properly to have been advanced to us at the time of the hearing or in the submissions subsequently filed.  The failure of the NZGRA to properly raise these matters at the hearing or in submissions prior to the release of our Decision cannot be a justifiable reason for allowing the Application for Recall.

(iv)              for the reasons briefly adverted to in paras (i) and (ii) above it is likely that even had the matters the subject of the present Application been properly put before us at the appropriate time, given the nature of our function, it may not have been proper for us to have taken them into account in fixing the period of disqualification we arrived at in our Decision.  The fact of Ms Edlin's non-compliance, if there be such, strictly had no bearing on the question of whether the period of disqualification imposed on her was manifestly excessive, and if so, what it should properly be reduced to.  The resolution of a dispute between the parties as to whether Ms Edlin had complied with the disqualification Order prior to it being stayed would seem to have no relevance to that issue.  However for the reasons outlined in the preceding paragraphs no formal finding in that regard is required.

3.   Result:

3.1       For the reasons detailed above we are of the view that no case for recall of our Decision has been made out and the application by the NZGRA is accordingly dismissed.

3.2       Beyond a letter simply recording the NZGRA's application was without merit and that Ms Edlin denied attending race meetings prior to the granting of the stay of penalty on 16 December 2009 no submissions were received from Mr Tannahill, Counsel for Ms Edlin.  There will therefore be no costs to Ms Edlin on the dismissal of this application but we see no reason why there should not be an Order for costs in favour of the Judicial Control Authority in respect of the costs of the Tribunal.  The NZGRA will accordingly pay costs to the Judicial Control Authority in the sum of $300. 00.

DATED this    10th   day of May 2010

_____________________________

Bruce Squire QC (Chairman)

Professor Geoffrey Hall

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